The practice of female genital mutilation (“FGM”) has many psychological, emotional, and physical effects. The international community recognizes the practice FGM as a human rights violation. There has been a global effort to eradicate the practice by both firmly categorizing FGM as a human rights violation and by making the practice illegal in countries where it is practiced. Despite these efforts, and despite the increasing awareness of the risks linked to FGM, millions of young girls are still affected today. This is because condemnation by the international community and even successful efforts within countries to make FGM illegal have done very little to change the social and cultural realities surrounding the practice. Until that happens, FGM will continue to effect women across the globe.

Currently, countries such as Somalia, where the rate of FGM is 98 percent, are considering passing legislation that will make FGM illegal. Making the practice illegal is an important step, however, simply changing the law will not, on its own, eradicate FGM. In Egypt, for example, although the practice has been illegal since 2008, the rate of FGM for married women is still at 92 percent. Furthermore, despite the fact that a doctor was recently convicted of manslaughter for performing FGM (his patient died), many doctors are still willing to perform the procedure. Even countries where FGM has not historically been woven into the fabric of society are struggling with eliminating the practice. For instance, in the United States, where FGM has been illegal since 1996, “the number of women at risk for female genital mutilation has practically doubled in the last decade.”

The continued pervasiveness of FGM, even in countries where it is explicitly illegal, is due to the fact that it is deeply woven into the fabric of society in many cultures around the world. Whether or not a girl goes through FGM is directly linked to her marriage prospects and to her acceptance into society. So for a family to forge the procedure or for a girl to refuse the procedure can have lasting and devastating effects. One girl in Sierra Leone was pulled out of school for two years for bringing shame on her family for refusing.

Legal action and international condemnation usually ignore these important cultural issues. The “knee-jerk” reaction in Western cultures is to completely demonize FGM and ignore sincerely held cultural beliefs. However, it turns out that one culture judging and attacking another does absolutely nothing to change the minds and practices of the judged culture. FGM is no exception.

The reality of the situation is that education and uniting the community are the keys to eradicating FGM. This approach must take into account the traditions and ancient cultural roots of FGM so as to not alienate communities. This is because the entire community needs to come together for this goal to be achieved. Especially since it is the adults who are ensuring and, in some cases, forcing children to go through the process. Without collective and coordinated action in the community, social pressures will continue to allow FGM to flourish.

Simply making something illegal without also changing cultural attitudes underling a practice will do little to eradicate the practice. Neither will condemning the practice outright and without any attempt to understand the underlying reasoning for the practice to continue. The increased international attention to the harms caused by FGM, and the attempts by some countries to eradicate the practice through passing legislation, are important. However, for the sake of the millions of girls still at risk of the procedure, more needs to be done. It is only by addressing the cultural issues realistically and sensitively that FGM can be reduced and hopefully eradicated globally.

Allison Derschang is a 3L at the University of Denver Sturm College Law and a Staff Editor on the Denver Journal of International Law and Policy

The economic conditions in Somalia are such that there is no shortage of men willing to hijack a ship, risking their lives in hopes of earning of the equivalent of 20 years of income – $5,000 in Somalia – out of a single $1.5 million ransom. That basic reality is the driving force of modern maritime piracy, and it leads to a similarly basic conclusion.

Aside from fixing the economic situation in Somalia, prosecution of those higher up in the criminal chain of conspiracy – the investors and financiers of piratical operations – is the most effective, non-violent means of to putting an end to maritime piracy. If labor is cheap and capital is scarce, it makes sense to go after the capital.

The United States government has done its part by prosecuting two pirate negotiators,1 Mohammad Saaili Shibin and Ali Mohamed Ali. The current dispositions of these cases highlight an interesting and important legal issue stemming from a common characteristic of piracy higher-ups. They themselves never set foot on the high seas.2

Mohammad Saaili Shibin(AP Image)

In Shibin’s case, Judge Robert Doumar allowed his trial to proceed; Shibin was found guilty and sentenced to 12 terms of life. In the Ali case however, which is still in progress, Judge Ellen Huevelle has found3 that the perpetrator must be on the high seas for a crime of universal jurisdiction to occur.

What accounts for this discrepancy in United States courts? Who has the better of the argument? The answers to these questions have profound implications for the future of prosecuting those who profit most from piracy.

At the heart of this disagreement is a dispute over the proper interpretation of the UNCLOS definition of piracy and the United States’s federal statute criminalizing piracy under the law of nations. Both of these texts must be read according to one of the most basic canons of statutory interpretation — that statutory language not be read as being duplicative or ineffectual.

Opponents of a high seas requirement, such as Douglas Guilfoyle at University College London, argue that UNCLOS art. 101’s definition of piracy makes it clear that performing piratical acts carries a high seas requirement, but acts of inciting or intentionally facilitating piracy can be performed anywhere, implying that both are crimes of universal jurisdiction.

To support this argument, opponents cite art. 101(a)(i) of UNCLOS, which states that piracy “consists of…any act of violence or detention [or deprivation]… committed for private ends by the crew… of a private ship…and directed…on the high seas, against another ship” [emphasis added]. They contrast that section with the next part of the piracy definition, art. 101(c), which says “any act of inciting or of intentionally facilitating an act described in subparagraph (a)” constitutes piracy. Opponents of a high seas requirement for facilitators conclude that, because UNCLOS announces a high seas requirement in subparagraph (a) and not in subparagraph (c), no such requirement exists for facilitation.

Conversely, proponents of a high seas requirement, including Northwestern University’s Eugene Kontorovich, cite various provisions of UNCLOS suggesting that universal jurisdiction over maritime piracy exists only where the act takes place on the high seas.

Chief among these provisions are arts. 100 and 105. The former limits a state’s duty to cooperate in the repression of piracy, and the latter restricts states’ universal capturing and adjudicating authority over pirates to acts occurring on the high seas. Additionally, art. 86 explicitly states that Part VII of UNCLOS (the part including the definition of piracy) only applies to the high seas and other areas outside the jurisdiction of any state.

Opponents counter that even if all of the aforementioned high seas references are operable, the drafters’ inclusion of a high seas requirement in 101(a) is otiose if 101(a) and (c) already had an implicit high seas requirement. Any other reading, they argue, is contrary to one of the most fundamental canons of statutory interpretation.

This is a mistake stemming from a conflation of UNCLOS’s definition of piracy and its pronouncements on universal jurisdiction. Opponents may be correct in suggesting that there is no high seas requirement for facilitators to commit statutory piracy as defined by UNCLOS, but they are wrong in arguing that performing an act described in art. 101 leads directly to universal jurisdiction.

Where piracy is concerned, UNCLOS performs at least two discrete functions: defining piracy and delineating the metes and bounds of universal jurisdiction over piracy. Art. 101 defines piracy as, inter alia, any act of violence, detention or deprivation on the high seas or any act of inciting or intentionally facilitating such an act. Where the statutory definition is concerned, there is a high seas requirement for perpetrators but none for inciters or facilitators.

Art. 101 says nothing about universal jurisdiction, however, and the parts of UNCLOS that do discuss universal jurisdiction – arts. 100, 105, and 86 – make it unmistakably plain that such jurisdiction extends only to acts physically performed on the high seas.

This dichotomy between the statutory definition of piracy and the high seas requirement for universal jurisdiction over piracy is borne out in 18 U.S.C. § 1651, which reads, “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

Section 1651 splices the definition of piracy and its high seas requirement as precondition for universal jurisdiction, outsourcing the former to international law (“as defined by the law of nations”) while making the latter explicit in the treaty (“[w]hoever, on the high seas”) , which is entirely consistent with the plain language of UNCLOS and the canon of construction at issue.

This means that, as defined by UNCLOS, negotiators and financiers who never set foot on the high seas have committed piracy, but that they have not committed a crime of universal jurisdiction. Unless higher-ups enter the high seas, they can be prosecuted only under the territorial, national, passive personality, and protective bases for jurisdiction.

At first blush, it may appear that such an interpretation does not bode well for those seeking to put an end to the global menace of maritime piracy, especially in light of the widely-held belief that the surest non-violent way to deter the piracy, apart from economic reconstruction in Somalia, is through the aggressive prosecution of so-called pirate “kingpins.”

In the coming weeks, however, I hope to dispel the notion that a high seas requirement for facilitators is bad for the international community. Such a requirement is in line with the policy rationale behind universal jurisdiction and it may ultimately be useful in prosecuting and punishing pirate financiers who never leave dry land.

Jon Bellish, the founding Editor in Chief of The View From Above, is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter. This piece is cross-posted on Communis Hostis Omnium.

To be clear; negotiators are not financiers. Financiers perform much less physical labor and reap much more of the profits than negotiators. Though it is financiers that should be the ultimate targets, negotiators are in a similar legal position and are therefore highly relevant. Both groups facilitate, rather than perpetrate acts of piracy, and neither tends to enter the high seas. ↩

This fact was stipulated in Shibin’s case but is still at issue in Ali’s. Although the government claims Ali spent only 24-28 minutes outside Somali territorial waters, it has admitted that there is no evidence that Ali actively facilitated piracy during that time period. ↩

Take a look at Judge Huvelle’s opinion, which is a fine example of the U.S. Federal Bench’s appreciation and understanding of international law. ↩

On July 13, 2012, the U.S. Federal District Court for the District of Columbia handed down United States v. Ali Mohamed Ali. This case is remarkable for several reasons: first, it is the first time the United States has used the principle of universal jurisdiction to prosecute a Somali pirate and second, the prosecution is not based on what we traditionally think of as piracy.

CEC Future (Micharms)

In November 2008, a band of Somali pirates seized the CEC Future as it sailed through the Gulf of Aden, the treacherous sea lane between Yemen and Somalia that connects the Red Sea to the Indian Ocean. At the time, the Danish-owned Future carried cargo, was flying the Bahamian flag, and was crewed by Russians, an Estonian, and a Georgian. Just after the ship was seized, Ali Mohamed Ali came aboard to act as a translator and go-between for the pirates and the Danish shipowners. He remained on the ship for sixty-nine days, only departing once the ransom had been paid. The ordeal ended in January 2009 when the Danish owners parachuted the ransom on to the ship. Fortunately none of the crew were injured; however, the payout was likely between $1 million and $2 million.

What is remarkable about this case is that there are no U.S. domestic interests implicated. Neither the crew nor the ship were American; in fact, neither party seriously contends that the ship has ties to the United States. However, the court concluded that the U.S. anti-piracy statute1 is based on the principle of “universal jurisdiction” and consequently does not require domestic ties. Universal jurisdiction permits a state to exercise jurisdictional control beyond its territory, in certain circumstances, even when that state’s domestic interests are not implicated. Piracy has long been held as a universal jurisdiction crime; however, Ali is the first time this theory has been put into practice.

After determining that it could exercise jurisdiction over Mr. Ali, the court turned to how broadly “piracy” was construed in statute and international law. Because Mr. Ali was charged with aiding and abetting piracy and conspiracy to commit piracy, the D.C. District Court had to determine whether international law permitted and the statute contemplated prosecution for these offenses. To determine the boundaries of the crime of piracy, the court turned to Article 101 of the UN Convention on the Law of the Sea.2 For the aiding and abetting component, the court found that UNCLOS Art. 101(c) is functionally equivalent and Mr. Ali’s charge could stand. Conspiracy, however, is not in the UNCLOS definition and the court could not find a basis to permit the charge.

Once complete with the piracy analysis, the court turned to the hostage taking counts. Hostage taking is not within the definition of piracy, and thus lacked the universal jurisdiction. But, states can extend their laws extraterritorially, as the United States did when it enacted legislation putting the Hostage Taking Convention into force. Although Somalia is not party to the Convention, the court, rather boldly, declared that treaty law could be applied in the face of divergent customary international law.3 Indeed, the treaty law may be applied against non-parties so long as it does not violated peremptory norms. Therefore, because aiding and abetting hostage taking was a cognizable crime and the U.S. authorized extraterritorial jurisdiction, Mr. Ali could properly be charged. However, the prosecution ran into a hang up when it charged conspiracy. Under the Charming Betsy principle, because conspiracy to take hostages is neither contemplated by the Hostage Taking Convention nor did Congress expressly intend to violate international law, this charge could not stand.

This case provides a powerful tool to combat piracy. No longer are prosecutions limited to the poor Somalis on skiffs; with this favorable ruling, U.S. prosecutors can go after the kingpins and financiers. Now that the question, “Can we prosecute those who plan and benefit from piracy?” has been answered, we must now ask whether we will take on that role.

“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” 18 U.S.C. § 1651 (2006) ↩

Last week, U.S. Navy seals rescued Poul Hagen Thisted and Jessica Buchanan, after being held hostage in Somalia for three months. Jon Huggins, director of the Oceans Beyond Piracy Project at One Earth Future, questioned why the US, thousands of miles away, was left to conduct this rescue. In short, the US has the means to conduct such an operation, and Somalia does not have the resources to fight piracy on its own. Despite the successful rescue of these aid workers, an international effort will be necessary to make any long-term progress with this problem.

Some, however, see this rescue as a potential turning point in the long “war” against piracy. This accomplishment may show pirates that the international community is willing to take action against what has practically become the norm. So far, efforts such as increased and more aggressive naval patrols seem to be helping reduce some piracy. The EU Naval Force reported that in 2010, 47 ships were hijacked, and in 2011, the number was down to 25. At the same time, the realization that there are increased efforts to combat piracy may cause pirates to develop new tactics and become more aggressive to counteract those increased efforts. Land-based kidnappings, such as those of Thisted and Buchanan, may evidence these changing tactics. The incentive to kidnap foreigners remains as high as ever, with $147 million paid for ransoms in 2011 alone.

As long as piracy is producing such lucrative ransom payments, it is unlikely that the problem will abate. Although many governments make paying ransom illegal, it is often “the most efficient way to deal with piracy.” In fact, prosecuting those who pay ransom is unlikely to prevent ship owners from continuing to do so. In addition, such prosecution is unlikely to help counteract the problem in the long-term. Some advocate for continued naval patrols as well as holding trials for suspected pirates within the region that these crimes take place. Others, such as shipping operators and insurers, support the use of armed guards aboard ships. Some countries, including the US, have passed laws permitting such action. Each country is able to make its own laws on this issue under the 1982 United Nations Convention on the Law of the Sea, where every ship is subject to the jurisdiction of the country whose flag it carries. Despite the existence of such laws, this is currently considered to be a highly controversial solution.

Although some feel that the international community is starting to make headway with the problem of piracy, many of the implemented and proposed solutions are likely to bring about new problems in this fight. Piracy will likely continue to flourish as long as the pirates can respond to the efforts with new tactics. In addition, until the international community can truly pull together and create a unified response, it will be very difficult to successfully combat piracy.

On October 16th, Kenyan troops crossed into Somalia in an attempt to secure the border between the two countries. Over the past month, Somali gunmen have kidnapped several Westerners, including two volunteers with Medecins Sans Frontieres, from northern Kenya. Kenya alleges that the Somalis involved in the kidnappings are members of al-Shabaab, a militarist group with ties to al-Qaeda that has been fighting against the Transitional Federal Government in Somalia.

The Transitional Federal Government (TFG) has a tenuous grasp on Somalia, despite withdrawals from Mogadishu by al-Shabaab in August. The group appears to be regrouping in southern Somalia, close to the Kenyan border where the TFG has less support from local clan-based militias. The town of Afmadow is a major stronghold of al-Shabaab and is strategically important because of its proximity to Kismayo, a port city that provides revenue for the group. Residents report that al-Shabaab fighters were leaving as the Kenyan troops approached.

Sources: BusinessWeek, NY Times, BBC, Washington Post

Al-Shabaab denies any involvement in the recent kidnappings and has vowed to take action against Kenya for its actions. On October 18th, a suicide car bomb killed six people in Mogadishu while the Kenya’s Defense and Foreign Ministers met with TFG officials. No one has claimed responsibility for the terrorist attack, but al-Shabaab has vowed to resist the Kenyan forces.

Kenya has been training these clan-based militias to fight al-Shabaab recently, but by entering Somalia with hundreds of troops, Kenya appears to be increasing its involvement. While Kenya has stated that its actions were caused by the recent kidnappings, military analysts have suggested that this highly complex operation has been planned for a while. There have been conflicting reports as to whether the Somali government was aware of the Kenyan military plan in advance, but on October 18th, the Somali government and the Kenyan ministers signed a communiqué emphasizing al-Shabaab’s threat to both countries and stating that Kenya and Somalia would work closely to “defend the sovereignty and territorial integrity of both countries.”

Al-Shabaab claims that Kenya is using the kidnappings as an excuse for the military operation and denies all involvement; others point out that al-Shabaab does not typically organize attacks outside of Somalia. However, Al-Shabaab was responsible for the July 2010 attacks in Uganda that killed 74 people watching a World Cup game in Kampala. It is also worth noting that Kenya hopes that increasing tourists to three million a year by 2015 will help it “achieve its goal of a 10 percent economic growth.” Several of the recent kidnappings in Kenya took place at resorts, which may have a negative impact on the tourism industry. Additionally, famine in Somalia has increased the number of refugees entering Kenya, increasing pressure on Kenyan resources and infrastructure.

The UN report comes nearly two months after Antonio Guterres, head of the UN refugee agency, described the problems as the “worst humanitarian disaster in the world.” Mr. Guterres appealed for world support to alleviate the suffering of people in the region after visiting the Dadaab refugee camp in Kenya, which was home to more than 380,000 displaced refugees as of July, with thousands more showing up each week. Thousands more are crossing the border into Ethiopia each day, many having walked for several days. The UN estimates that up to 50% of children arriving at the camps are malnourished.

The famine is largely the result of the worst drought in Somalia in sixty years, with conditions further exacerbated by violence and political strife within the country. Relief efforts by the Somali government, the UN, and other aid groups have been complicated, and sometimes made impossible, by civil war within the nation and restricted access to some of the hardest hit areas. The al-Shabab militia, an armed Somali Islamist rebel organization with ties to al-Qaeda, has forced out many western aid organizations and blocked routes of displaced travelers seeking relief in the capital city, Mogadishu. “It is safe to say that many people are going to die as a result of little or no access [for aid groups],” says Eric James of the American Refugee Committee.

Over 12 million people throughout the Horn of Africa are affected by the drought and in need of assistance.

Further complicating relief efforts by Western organizations looking to help in the area is the US government’s classification of al-Shabab as a terrorist group in 2008. Such a classification makes it a crime to provide material assistance to the group, which aid officials claim has a chilling effect on relief organizations who are fearful of legal trouble resulting from aid money finding its way into al-Shabab hands.

Maritime piracy off the coast of Somalia continues to spiral into an increasingly threatening international crisis, with attacks in the Gulf of Aden increasing during the first half of 2011. While more states have been prosecuting pirates in their national courts during the last year, United Nations officials have indicated that as many as 90% of pirates captured by national navies are subsequently released due to complicated legal and financial burdens associated with prosecution. In the search for solutions to the current maritime piracy problem, international legal initiatives addressing civil aviation security may offer insight

A global trend of airline hijackings beginning in the late 1960s and culminating in the terrorist attacks of September 11, 2001, catalyzed various initiatives that have improved the efficacy of aviation security. The international legal regime governing civil aviation security developed through various international treaties, conventions, agreements, and declarations and resolutions from important international institutions. In particular, international agreements embodying the legal maxim aut dedere aut judicare—the obligation of states to prosecute or extradite the accused—are an important component of the international aviation security regime. The United States, as the world’s largest aviation market, has also contributed to the international civil aviation security regime through its domestic legislation. At various times in the modern era, the United States has used economic leverage to propel compliance with its domestic security standards monitored by Federal Aviation Administration security audits by barring non-complying states from access to its airports.

This broad legal framework offers a valuable example of cooperation and collaboration between various stakeholders to address a trend in international crime. While there are limitations that must be considered in drawing an analogy between airline hijackings and maritime piracy due to contextual and legal distinctions, there are significant similarities conducive to legal comparison.

Borrowing from Civil Aviation

In particular, the elimination of safe havens for airline hijackers appears to be an effective deterring factor that may inform initiatives relevant to maritime piracy. In aviation security, prosecute-or-extradite approaches have made a discernible impact on deterring hijackings. For example, much of the airline hijacking crisis in the United States during the 1960s and 1970s was driven by Cold War-era motivations involving Cuban political refugees seeking a safe haven in the United States or Cuba (depending on their political orientation). In 1973, the United States and Cuba exchanged diplomatic notes constituting a Memorandum of Understanding that neither country would serve as a safe haven for hijackers. Following this agreement, the number of attempted hijackings of aircraft in the United States dropped significantly from 25 hijackings per year prior to the agreement to only one the following year. This remarkable change suggests that the existence of a sanctuary nation for hijackers enabled the Cuban hijacking problem.

Similar extradite-or-prosecute provisions exist in the international legal regime governing maritime piracy, yet these provisions have not been matched with international compliance. Being unable to rely on Somalia to prosecute pirates within its borders, the international community must, at least temporarily, seek to deter and eliminate safe havens through prosecution outside the current Somali judicial system. The enforcement of international agreements with provisions obliging states to prosecute piracy suspects or extradite them to another state willing to prosecute is a vital part of the solution. To ensure compliance, the international community or the United States should consider coercive mechanisms such as those used in civil aviation security to drive compliance with these important international agreements.

Initiatives that mirror airport security measures designed to deter infiltration of the security infrastructure at airports may also offer anti-piracy solutions. While increased port security may be less effective than its airport counterpart, ports may serve as checkpoints to determine whether ships are outfitted to implement piracy-deterring strategies, such as internationally recognized Best Management Practices (BMPs). Currently, it is believed that shipping companies do not always employ BMPs as suggested by maritime security experts. As ships remain vulnerable to piratical acts and attacks continue to be successful, the piracy problem is perpetuated.

Economic sanctions that have been used to fight airline terrorism may also being used to target financers of piracy crimes. Such measures have already be implemented to some degree on the domestic level through the United States Department of Treasury Office of Foreign Assets Control, which administers and enforces economic and trade sanctions based on foreign policy and national security goals. An Executive Order issued by President Obama on April 12, 2010, authorized sanctions on “those who engage in or support acts of piracy off Somalia’s coast, including those who provide weapons, communication devices, or small boats and other equipment to pirates.” While this approach is encouraging, sanctions may have limited effect because pirates often operate with liquid assets.

Communication between various stakeholders affected by the piracy crisis may also be informed by the international airline security regime. Some commentators have suggested that the International Civil Aviation Organization (ICAO) and its role in air transportation could serve as a model for security cooperation that could translate in the maritime commons through existing bodies such as the International Maritime Organization. In particular, ICAO’s success may serve as a model for an international agency to support an enhanced global framework for international maritime situational awareness and security cooperation.

Any solution to effectively address the maritime piracy crises off the coast of Somalia must be comprehensive. While port security to ensure compliance with BMPs, economic sanctions targeted at piracy financers, and enhanced communication among stakeholders are important considerations, the problem of piracy is unlikely to be eradicated while national navies continue to catch and release piracy suspects. Civil aviation security law provides an applicable example of the international community’s capacity to enforce prosecution or extradition of terrorists and hijackers. Anti-piracy stakeholders, including national governments, the shipping industry, and international organizations tasked with ensuring international peace and security, should consider these successes in limiting airline hijackings through legal accountability as they work together to reign in piracy in the Gulf of Aden.

The surge of piracy attacks worldwide and their increasing threat to international shipping are indeed alarming. The Piracy Reporting Center of the International Maritime Bureau (IMB), an independent arm of the International Chamber of Commerce, reports that incidents of piracy and robbery at sea reached 445 in 2010, compared with 400 in 2009, while there were 293 attacks in 2008, and 263 and 239 for the years 2007 and 2006, respectively. In the first five months of 2011 there have been 273 such incidents — almost 50 percent more than in 2010. 92 percent of all hijackings in 2010 were off the coast of Somalia.

The global economic cost of maritime piracy is estimated at between $7-12 billion per year, according to a December 2010 report by the One Earth Future Foundation. The report found that the ransoms paid to Somali pirates had increased from an average of $150,000 in 2005 to $5.4 million in 2010. Pirates have killed several hostages when ransoms were not paid.

The international community has responded to this growing threat of piracy, especially in the Gulf of Aden and off the Somali coast, by undertaking naval operations, coordinated by NATO, the EU, and a coalition led by the United States, in addition to several countries operating on their own. It has been suggested to arm crew members, but this has not won favor from the shipping companies; perhaps it is more feasible to use private security companies, as is being done in some cases. Notwithstanding all these efforts, the scourge of piracy continues to be a major challenge to the international community. The major reason is that Somalia is a failed state, it has Africa’s longest coastline, spanning 3,025 miles, and its geographical location lies next to key shipping routes connecting the Red Sea and Indian Ocean.

Piracy constitutes a violation of international law, a crime that is considered a threat to all nations navigating the open seas. In an 1820 US Supreme Court case, US v. Smith, Justice Story, writing for the Court, declared that “there is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature.” Consequently the principle of universal jurisdiction applies to acts of piracy. Under this principle, any nation may prosecute acts of piracy in its domestic court, no matter where these acts occurred and no matter who the perpetrator is. Accordingly, a nation could rely on this principle to seize and prosecute Somali pirates engaged in piracy on the high seas. However, most countries have routinely released the pirates after capturing them because of the problems associated with trying them in their own national courts — expense, lack of adequate evidence, and the feared claim of asylum on the pirates’ part.

Some national courts have begun prosecuting pirates. Kenya has entered into several agreements with the European Union, the United States, the United Kingdom, China, and several other countries, to take custody of and prosecute pirates in its courts. Seychelles has also been prosecuting suspected pirates in its national court. Also, in late November 2010, the Virginia Federal District Court convicted five Somali pirates on federal piracy charges. Some European courts, too, have considered trying Somali pirates. Among these courts, the Dutch have taken the lead.

In addition to customary international law, two treaties are pertinent, under which a state could arrest and prosecute pirates in their national courts. The conventions are the United Nations Law of the Sea Convention (UNCLOS) and the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA). UNCLOS calls upon all states to combat piracy by cooperating to the fullest extent in repressing this crime on the high seas or any other place outside the jurisdiction of any state, although only warships, military ships, or other crafts of government service are permitted to seize them.

The 1992 SUA currently has 150 state parties and is aimed at addressing concerns about violence and terrorism on the high seas. Although it does not expressly outlaw piracy, an offense under SUA is committed if a person willingly takes part in seizing control of a ship by force or intimidation, uses violence against an individual on a ship affecting the safety of a ship, or damages a ship in such a way that it affects the ship’s safe navigation. Attempts at these piratical actions, aiding or abetting a pirate, or threatening to commit piratical acts are also included. The SUA Convention provides for extradition of offenders to ensure that a criminal is prosecuted even though the state in whose territory the offender is located is unwilling or unable to prosecute. In addition, the International Tribunal for the Law of the Sea may also provide a remedy as a forum for a piracy trial.

The United Nations Security Council, acting under Chapter VII, has adopted several resolutions since 2008 to counter piracy and armed robbery at sea. It has authorized member states to take action against pirates even in Somalia’s territorial waters and has called upon states and regional organizations to deploy naval vessels, arms and military aircraft and seize and dispose of vessels and equipment used in the commission of these crimes. It has also called on states to criminalize piracy under their domestic laws, and to favorably consider prosecuting and imprisoning suspected pirates.

There is currently no possibility of a Somali court sitting in Somalia or in the territory of another regional state applying Somali law. Could a regional tribunal or an international tribunal established by the Security Council under Chapter VII of the UN Charter be feasible? The challenges of creating such an international judicial body are enormous, but it is worthwhile seriously considering this possibility.

—

Ved Nanda is the John Evans Distinguished University Professor, University of Denver; Thompson G. Marsh Professor of Law and Director, International Legal Studies Program, University of Denver Sturm College of Law

Seafarers face increasing violence as they transit the Gulf of Aden, the Arabian Sea, and the Indian Ocean, but they have limited legal protection or recourse from the crimes committed against them at sea. Since the resurgence of maritime piracy off the Horn of Africa in 2007, hundreds of vessels have been hijacked and thousands of seafarers taken hostage by Somalis seeking to secure lucrative ransom payments. In our analysis of the human cost of Somali piracy, we found that violence against seafarers by Somali pirates is escalating, but little is being done to openly measure and document these crimes.

Oceans are used by multiple stakeholders with divergent and sometimes conflicting interests. Crimes committed aboard or against vessels are subject to the laws of the flag state, however some flag states may not have the capacity or the political will to fully protect seafarers through prosecution and law enforcement. Furthermore, activities occurring on the high seas fall outside the jurisdiction of any single nation; legal protection for the oceans and those who work on them therefore require a legitimate international legal framework accompanied by domestic implementation of international obligations.

International maritime law exists under the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), both of which are broadly ratified. Under UNCLOS, states have a duty to cooperate through active measures against piracy, and SUA requires parties to extradite or submit offenders to their competent authorities for prosecution. In combination, these conventions appear to require states to prosecute pirates. Despite this ostensibly robust legal regime for prosecuting pirates, few nations have actually done so. As a result, there is no effective legal deterrence to piracy, leaving pirates free to commit crimes at sea with little to no risk of detention.
In order to understand the full extent of the crimes committed by Somali pirates and the cost of those actions to seafarers, we quantified the total number of seafarers attacked or taken hostage. Our study’s findings indicate that during the course of 2010:

4,185 seafarers were attacked with firearms and rocket propelled grenades

342 seafarers took refuge in a reinforced security room (“citadel”) when pirates boarded, from which they were rescued by naval forces

1,090 seafarers were taken hostage and held captive for an average of five months

516 seafarers were used as human shields

As many as 488 seafarers were subjected to abuse or torture

The cost of piracy is high for seafarers. Even in the case of an “unsuccessful” attack where pirates are not able to hijack the vessel, seafarers are still exposed to weapon fire and explosives aimed directly at their place of work. If pirates board a vessel, the crew may be able to take shelter in a citadel; however, this, too, is a dangerous and traumatic experience in which the crew awaits rescue for anywhere from hours to days while pirates try to violently force their way inside. If pirates successfully capture a ship, seafarers are held against their will for months on end during which time they face physical and psychological violence from the pirates, limited access to food and water, uncertainty about their fate, and risk of death.

As Andrew Shapiro, US Assistant Secretary of State, made clear in a speech in March of 2011, “the attacks are more ruthless, more violent, and wider ranging. Hostages have been tortured and used as human shields.” However, official data is only available on the initial incident, whether it is an attack, boarding, or hijacking. This limited categorization of pirate activities undervalues the dangers and trauma faced by seafarers by limiting the description of their ordeal to “hijacking.”

One obstacle that restricts the protection of seafarers is the lack of a single, reliable source to inform seafarers and others of how seafarers are treated during captivity, and how widespread abusive tactics are amongst the various pirate gangs. Seafarers deserve to know the full extent of the risks they face when transiting pirated waters. In the words of a seafarer from the MV UBT Ocean, which was held by pirates for more than four months, during which time crewmembers were reportedly tortured and abused, “all the seafarers must be fully aware of this danger and risk in crossing the Indian Ocean.” While open source news stories and interviews provided enough information to determine the approximate number of seafarers abused or used as human shields, there is no way to independently verify if these figures represent the true extent of the abuse. Our study makes clear that the abuse is alarmingly common, but the lack of more comprehensive reporting prevents the true cost from being understood.

Developing reliable compliance with international agreements and increased protection for the victims of piracy is especially difficult because the maritime industry is fragmented by nationality at every level. Ship owner, ship manager, flag state, cargo owner, and crewmembers may all come from different countries. For example, seafarers taken hostage in 2010 came from at least 30 different countries, the majority of which were developing nations. As a result of this great diversity wherein many different actors and stakeholders bear responsibility for monitoring and protecting seafarers, no single country or group is held accountable. The end result is that seafarers as a whole do not have a central, reliable organization to turn to for legal protection.